OF LASKEY, JAGGARD AND BROWN v. THE UNITED KINGDOM
The present judgment is subject to editorial
revision before its reproduction in final form in the Reports of Judgments
and Decisions for 1997. These reports are obtainable from the publisher Carl
Heymanns Verlag KG (Luxemburger Stra_e 449, D-50939 Kvln), who will also arrange
for their distribution in association with the agents for certain countries as
List of Agents
Etablissements Emile Bruylant (rue de la Rigence 67, B - 1000 Bruxelles)
Librairie Promoculture (14, rue Duchscher (place de Paris), B.P. 1142, L - 1011
Pays-Bas/The Netherlands: B.V.
Juridische Boekhandel & Antiquariaat A. Jongbloed & Zoon (Noordeinde 39,
NL - 2514 GC La Haye/'s-Gravenhage)
delivered by a Chamber
United Kingdom - prosecution
and conviction for sado-masochistic practices (sections 20 and 47 of the Offences
Against the Persons Act 1861)
of the Convention
Common ground before Court:
criminal proceedings against applicants constituted "interference by a public
authority" with right to respect for private life, carried out "in accordance
with the law" and in pursuance of legitimate aim ("protection of health
or morals"). Only issue: whether interference "necessary in a democratic
"Necessary in a democratic society"
unquestionably entitled to regulate through criminal law the infliction of physical
harm - determination of tolerable level of harm where victim consents primarily
a matter for State concerned.
Court not persuaded that
applicants' behaviour belonged to private morality and was excluded from State's
intervention - evident from facts that activities involved significant degree
of injury and wounding - State authorities were entitled to consider not only
actual but also potential harm inherent in activities.
evidence to support allegation of authorities' bias against homosexuals - majority
in House of Lords based decision on extreme nature of practices.
reasons given by national authorities for interference are relevant and sufficient.
degree of organisation, limited number of charges selected for prosecution, and
reduced sentences imposed on appeal - interference not disproportionate.
authorities entitled to consider interference "necessary in a democratic
society" for protection of health.
no violation (unanimously).
case-law referred to
22.10.1981, Dudgeon v.
the United Kingdom; 24.3.1980, Olsson v. Sweden; 26.10.1988, Norris v. Ireland;
22.4.1993, Modinos v. Cyprus; 25.9.1996, Buckley v. the United Kingdom
the case of Laskey, Jaggard and Brown v. the United Kingdom[fn1]
The European Court of Human Rights, sitting, in accordance
with Article 43 of the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention") and the relevant provisions of Rules of
Court A[fn2] , as a Chamber composed of the following
Mr R. Bernhardt, President,
Mr C. Russo,
Sir John Freeland,
M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr E. Levits,
of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,
deliberated in private on 28 October 1996 and 20 January 1997,
the following judgment, which was adopted on the last-mentioned date:
The case was referred to the Court by the European Commission of Human Rights
("the Commission") on 11 December 1995, within the three-month period
laid down by Article 32 ' 1 and Article 47 of the Convention. It originated
in applications (nos. 21627/93, 21826/93 and 21974/93) against the United Kingdom
of Great Britain and Northern Ireland lodged with the Commission under Article
25 on 14 December 1992 by three British nationals, Mr Colin Laskey, Mr Roland
Jaggard and Mr Anthony Brown.
The Commission's request
referred to Articles 44 and 48 and to the declaration whereby the United Kingdom
recognised the compulsory jurisdiction of the Court (Article 46). The object of
the request was to obtain a decision as to whether the facts of the case disclosed
a breach by the respondent State of its obligations under Article 8 of the Convention.
In response to the enquiry made in accordance with Rule 33 ' 3 (d)
of Rules of Court A, the late Mr Laskey's father and the two other applicants
stated that they wished to take part in the proceedings and designated the lawyers
who would represent them (Rule 30).
3. The Chamber
to be constituted included ex officio Sir John Freeland, the elected judge
of British nationality (Article 43 of the Convention), and Mr R. Bernhardt,
the Vice-President of the Court (Rule 21 ' 4 (b)). On 8 February
1996, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal,
drew by lot the names of the other seven members, namely Mr L.-E. Pettiti, Mr
C. Russo, Mr A. Spielmann, Mr M.A. Lopes Rocha, Mr L. Wildhaber, Mr P. Kuris and
Mr E. Levits (Article 43 in fine of the Convention and Rule 21 ' 5).
As President of the Chamber (Rule 21 ' 6), Mr Bernhardt, acting
through the Registrar, consulted the Agent of the United Kingdom Government, the
applicants' lawyers and the Delegate of the Commission on the organisation of
the proceedings (Rules 37 ' 1 and 38). Pursuant to the orders made
in consequence, the Registrar received the Government's and the applicants' memorials
on 2 and 15 July 1996 respectively.
5. On 17 July
1996, the President granted leave to Rights International, a New York-based
non-governmental Human Rights organisation, to submit written comments on specific
aspects of the case (Rule 37 ' 2). The comments were received on 16 August 1996.
In accordance with the President's decision, the hearing took place in public
in the Human Rights Building, Strasbourg, on 21 October 1996. The Court had held
a preparatory meeting beforehand.
There appeared before
(a) for the Government
I. Christie, Assistant Legal Adviser, Foreign and Commonwealth Office, Agent,
D. Pannick, QC,
Mr M. Shaw, Counsel,
Ms B. Moxon, Advisers;
for the Commission
Mr G. Ress, Delegate;
for the applicants
Lord Lester of Herne Hill, QC,
A. Worrall, QC, Counsel,
Mr D. Jonas,
Mr I. Geffen, Solicitors,
J. Wadham, Adviser.
The Court heard addresses by
Mr Ress, Lord Lester of Herne Hill, Ms Worrall and Mr Pannick.
TO THE FACTS
I. The circumstances
of the case
7. Mr Laskey, Mr Jaggard
and Mr Brown, all British citizens, were born in 1943, 1947 and 1935 respectively.
Mr Laskey died on 14 May 1996.
8. In 1987 in the course
of routine investigations into other matters, the police came into possession
of a number of video films which were made during sado-masochistic encounters
involving the applicants and as many as 44 other homosexual men. As a result the
applicants, with several other men, were charged with a series of offences, including
assault and wounding, relating to sado-masochistic activities that had taken place
over a ten-year period. One of the charges involved a defendant who was not yet
21 years old - the age of consent to male homosexual practices at the time. Although
the instances of assault were very numerous, the prosecution limited the counts
to a small number of exemplary charges.
The acts consisted
in the main of maltreatment of the genitalia (with, for example, hot wax, sandpaper,
fish hooks and needles) and ritualistic beatings either with the assailant's bare
hands or a variety of implements, including stinging nettles, spiked belts and
a cat-o'-nine tails. There were instances of branding and infliction of injuries
which resulted in the flow of blood and which left scarring.
activities were consensual and were conducted in private for no apparent purpose
other than the achievement of sexual gratification. The infliction of pain was
subject to certain rules including the provision of a code word to be used by
any "victim" to stop an "assault", and did not lead to any
instances of infection, permanent injury or the need for medical attention.
The activities took place at a number of locations, including rooms equipped as
torture chambers. Video cameras were used to record events and the tapes copied
and distributed amongst members of the group. The prosecution was largely based
on the contents of those video tapes. There was no suggestion that the tapes had
been sold or used other than by members of the group.
The applicants pleaded guilty to the assault charges after the trial judge ruled
that they could not rely on the consent of the "victims" as an answer
to the prosecution case.
11. On 19 December 1990,
the defendants were convicted and sentenced to terms of imprisonment. On passing
sentence, the trial judge commented: "the unlawful conduct now before the
court would be dealt with equally in the prosecution of heterosexuals or bisexuals
if carried out by them. The homosexuality of the defendants is only the background
against which the case must be viewed."
was sentenced to imprisonment for four years and six months. This included a sentence
of four years' imprisonment for aiding and abetting keeping a disorderly house
(see paragraph 31 below) and a consecutive term of six months' imprisonment for
possession of an indecent photograph of a child. Under section 47 of the Offences
Against the Person Act 1861 ("the 1861 Act" - see paragraph 27 below),
Mr Laskey also received concurrent sentences of twelve months' imprisonment
in respect of various counts of assault occasioning actual bodily harm and aiding
and abetting assault occasioning actual bodily harm.
Mr Jaggard was sentenced to imprisonment for three years. He received two years'
imprisonment for aiding and abetting unlawful wounding - contrary to section 20
of the 1861 Act (see paragraph 25 below) -, and a further twelve months' imprisonment
for assault occasioning actual bodily harm, aiding and abetting the same offence,
and unlawful wounding.
13. Mr Brown was sentenced to imprisonment
for two years and nine months. He received twelve months' imprisonment for aiding
and abetting assault occasioning actual bodily harm, a further nine months' imprisonment
for assault occasioning actual bodily harm, and a further twelve months' imprisonment
for further assaults occasioning actual bodily harm.
The applicants appealed against conviction and sentence.
On 19 February 1992, the Court of Appeal, Criminal Division, dismissed the appeals
against conviction. Since, however, the Court found that the applicants did not
appreciate that their actions in inflicting injuries were criminal, reduced sentences
16. Mr Laskey's sentence was thus reduced
to 18 months' imprisonment as regards the charge of aiding and abetting keeping
a disorderly house. This sentence was to run concurrently with another three months'
sentence in respect of the various counts of assault and consecutively with six
months' imprisonment for the possession of an indecent photograph of a child,
totalling two years' imprisonment.
17. Mr Jaggard's and
Mr Brown's sentences were reduced to six months' and three months' imprisonment
18. The applicants appealed to the House
of Lords on the following certified point of law of public importance:
"Where A wounds or assaults B occasioning him actual
bodily harm in the course of a sado-masochistic encounter, does the prosecution
have to prove lack of consent on the part of B before they can establish A's guilt
under section 20 or section 47 of the 1861 Act?"
On 11 March 1993, the appeal, known as the case of R. v. Brown (
2 All England Law Reports 75), was dismissed by a majority of the House of Lords,
two of the five law lords dissenting.
20. Lord Templeman,
in the majority, held after reviewing the case-law that:
the authorities dealing with the intentional infliction of bodily harm do not
establish that consent is a defence to a charge under the Act of 1861. They establish
that consent is a defence to the infliction of bodily harm in the course of some
lawful activities. The question is whether the defence should be extended to the
infliction of bodily harm in the course of sado-masochistic encounters ...
for the appellants argued that consent should provide a defence ... because it
was said every person has a right to deal with his own body as he chooses. I do
not consider that this slogan provides a sufficient guide to the policy decision
which must now be taken. It is an offence for a person to abuse his own body and
mind by taking drugs. Although the law is often broken, the criminal law restrains
a practice which is regarded as dangerous and injurious to individuals and which
if allowed and extended is harmful to society generally. In any event the appellants
in this case did not mutilate their own bodies. They inflicted harm on willing
In principle there is a difference between
violence which is incidental and violence which is inflicted for the indulgence
of cruelty. The violence of sado-masochistic encounters involves the indulgence
of cruelty by sadists and the degradation of victims. Such violence is injurious
to the participants and unpredictably dangerous. I am not prepared to invent a
defence of consent for sado-masochistic encounters which breed and glorify cruelty
Society is entitled and bound to protect itself against
a cult of violence. Pleasure derived from the infliction of pain is an evil thing.
Cruelty is uncivilised."
21. Lord Jauncey
of Tullichettle found that:
"In my view
the line falls properly to be drawn between assault at common law and the offence
of assault occasioning actual bodily harm created by section 47 of the 1861 Act,
with the result that consent of the victim is no answer to anyone charged with
the latter offence ... unless the circumstances fall within one of the well known
exceptions such as organised sporting contests or games, parental chastisement
or reasonable surgery ... the infliction of actual or more serious bodily harm
is an unlawful activity to which consent is no answer.
Notwithstanding the views which I have come to, I think it right to say something
about the submissions that consent to the activity of the appellants would not
be injurious to the public interest.
was placed by the appellants on the well-ordered and secret manner in which their
activities were conducted and upon the fact that these activities had resulted
in no injuries which required medical attention. There was, it was said, no question
of proselytising by the appellants. This latter submission sits ill with the following
passage in the judgment of the Lord Chief Justice:
[Laskey and Cadman] recruited new participants: they jointly organised proceedings
at the house where much of this activity took place; where much of the pain inflicting
equipment was stored.
Cadman was a voyeur rather
than a sado-masochist, but both he and Laskey through their operations at the
Horwich premises were responsible in part for the corruption of a youth "K"
who is now it seems settled into a normal heterosexual relationship.'
that as it may, in considering the public interest it would be wrong to look only
at the activities of the appellants alone, there being no suggestion that they
and their associates are the only practitioners of homosexual sado-masochism in
England and Wales. This House must therefore consider the possibility that these
activities are practised by others and by others who are not so controlled or
responsible as the appellants are claiming to be. Without going into details of
all the rather curious activities in which the appellants engaged it would appear
to be good luck rather than good judgment which has prevented serious injury from
occurring. Wounds can easily become septic if not properly treated, the free flow
of blood from a person who is H.I.V. positive or who has Aids can infect another
and an inflicter who is carried away by sexual excitement or by drink or drugs
could very easily inflict pain and injury beyond the level to which the receiver
had consented. Your Lordships have no information as to whether such situations
have occurred in relation to other sado-masochistic practitioners. It was no doubt
these dangers which caused Lady Mallalieu to restrict her propositions in relation
to the public interest to the actual rather than the potential result of the activity.
In my view such a restriction is quite unjustified. When considering the public
interest potential for harm is just as relevant as actual harm. As Mathew J. said
in Coney 8 Queen's Bench 534, 547:
'There is however abundant authority for saying that no consent
can render that innocent which is in fact dangerous.'
Furthermore, the possibility of proselytisation and corruption
of young men is a real danger even in the case of these appellants and the taking
of video recordings of such activities suggest that secrecy may not be as strict
as the appellants claimed to your Lordships."
Lord Mustill and Lord Slynn of Hadley dissented. The first considered that the
case should not be treated as falling within the criminal law of violence but
rather within the criminal law of private sexual relations. He gave weight to
the arguments of the appellants concerning Article 8 of the Convention, finding
that the decisions of the European authorities clearly favoured the right of the
appellants to conduct their private life undisturbed by the criminal law. He considered
after an examination of the relevant case-law that it was appropriate for the
House of Lords to tackle afresh the question whether public interest required
penalising the infliction of this degree of harm in private on a consenting recipient,
where the purpose was not profit but gratification of sexual desire. He found
no convincing argument on grounds of health (alleged risk of infections or spread
of AIDS), the alleged risk of the activities getting out of hand or any possible
risk of corruption of youth which might require the offences under the 1861 Act
to be interpreted as applying to this conduct.
Slynn of Hadley found that as the law stood adults were able to consent to acts
done in private which did not result in serious bodily harm. He agreed that it
was in the end a matter of policy in an area where social and moral factors were
extremely important and where attitudes could change. It was however for the legislature
to decide whether such conduct should be brought within the criminal law and not
for the courts in the interests of "paternalism" to introduce into existing
statutory crimes relating to offences against the person concepts which did not
properly fit there.
24. The proceedings were given widespread
press coverage. All the applicants lost their jobs and Mr Jaggard required extensive
II. Relevant domestic
law and practice
A. Offences against
1. The Offences against
the Person Act 1861
25. Section 20 of the
Offences Against the Person Act 1861 ("the 1861 Act") provides:
"Whosoever shall unlawfully and maliciously wound or
inflict any grievous bodily harm upon any other person, either with or without
any weapon or instrument, ... shall be liable ... to [imprisonment] ... for not
more than five years."
to the case-law, to constitute a wound for the purposes of the section, the whole
skin must be broken, not merely the outer layer or epidermis.
By section 47 of the 1861 Act:
shall be convicted on indictment of any assault occasioning actual bodily harm
shall be liable ... to imprisonment for not more than five years."
bodily harm is defined as "any hurt or injury calculated to interfere with
health or comfort" (Liksey J., in R v. Miller  2 Queen's
Bench Reports 282, at 292).
2. Case-law prior
to R. v. Brown
28. In the case of R.
v. Donovan ( 2 King's Bench Reports, at 498), the accused had beaten
with a cane a girl for the purposes of sexual gratification, with her consent.
Swift J. held:
"It is an unlawful act
to beat another person with such a degree of violence that the infliction of actual
bodily harm is a probable consequence, and when such an act is proved, consent
29. In Attorney-General's
Reference (No. 6 of 1980) ( Queen's Bench Reports, at 715) where two
men quarrelled and decided to fight each other, Lord Lane CJ in the Court of Appeal
"It is not in the public interest
that people should try to cause or should cause each other actual bodily harm
for no good reason. Minor struggles are another matter. So, in our judgment, it
is immaterial whether the act occurs in private
or in public;
it is an assault if actual bodily harm is intended and/or caused. This means that
most fights will be unlawful regardless of consent. Nothing which we have said
is intended to cast doubt upon the accepted legality of properly conducted games
and sports, lawful chastisement or correction, reasonable surgical interference,
dangerous exhibitions etc. These apparent exceptions can be justified as involving
the exercise of a legal right, in the case of chastisement or correction, or as
needed in the public interest, in the other cases."
Case-law subsequent to R. v. Brown
In R. v. Wilson ( 3 Weekly Law Reports, at 125), where a man had
been convicted of assault occasioning actual bodily harm for having branded his
initials with a hot knife on his wife's buttocks with her consent, the Court of
Appeal, Criminal Division, allowed the appeal. In the course of the Court's judgment,
Lord Justice Russell stated:
is no factual comparison to be made between the instant case and the facts of
either Donovan or Brown: Mrs Wilson not only consented to that
which the appellant did, she instigated it. There was no aggressive intent on
the part of the appellant. ...
do not think that we are entitled to assume that the method adopted by the appellant
and his wife was any more dangerous or painful than tattooing. ...
activity between husband and wife, in the privacy of the matrimonial home, is
not, in our judgment, a proper matter for criminal investigation, let alone criminal
against public decency
31. Keeping a "disorderly
house" is a common law offence. A disorderly house is defined as
"one which is not regulated by the restraints of morality
and which is so conducted as to violate law and good order. There must be an element
of 'open house', but it does not need to be open for the public at large ... Where
indecent performances or exhibitions are alleged as rendering the premises a disorderly
house, it must be proved that matters are there performed or exhibited of such
a character that their performance or exhibition in a place of common resort (a)
amounts to an outrage of public decency, or (b) tends to corrupt or deprave, or
(c) is otherwise calculated to injure the public interest so as to call for condemnation
and punishment" ( Archbold's Criminal Pleading, Evidence and Practice
20, at 224).
32. Mr Laskey, Mr Jaggard and
Mr Brown applied to the Commission on 14 December 1992. They relied on Articles
7 and 8 of the Convention, complaining that their convictions were the result
of an unforeseeable application of a provision of the criminal law which, in any
event, amounted to an unlawful and unjustifiable interference with their right
to respect for their private life.
33. On 18 January 1995,
the Commission declared the applications (nos. 21627/93, 21826/93 and 21974/93)
admissible as to the complaint under Article 8 of the Convention. In its report
of 26 October 1995 (Article 31), it expressed the opinion, by eleven votes
to seven, that there had been no violation of that provision.
full text of the Commission's opinion and of the two separate opinions contained
in the report is reproduced as an annex to this judgment[fn3] .
FINAL SUBMISSIONS TO THE
34. At the hearing, the Government invited
the Court to agree with the majority of the Commission that there had been no
breach of the Convention in this case.
for their part, asked the Court to consider the position of each individual applicant
upon the basis of the agreed facts and the charges which were pertinent to them
and to find a violation of their right to respect for their private lives through
the expression of their sexual personality, as guaranteed by Article 8 of the
AS TO THE LAW
VIOLATION OF ARTICLE 8 OF THE CONVENTION
The applicants contended that their prosecution and convictions for assault and
wounding in the course of consensual sado-masochistic activities between adults
was in breach of Article 8 of the Convention, which provides:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others."
was common ground among those appearing before the Court that the criminal proceedings
against the applicants which resulted in their conviction constituted an "interference
by a public authority" with the applicants' right to respect for their private
life. It was similarly undisputed that the interference had been "in accordance
with the law". Furthermore, the Commission and the applicants accepted the
Government's assertion that the interference pursued the legitimate aim of the
"protection of health or morals", within the meaning of the second paragraph
of Article 8.
36. The Court observes that not every sexual
activity carried out behind closed doors necessarily falls within the scope of
Article 8. In the present case, the applicants were involved in consensual sado-masochistic
activities for purposes of sexual gratification. There can be no doubt that sexual
orientation and activity concern an intimate aspect of private life (see, mutatis
mutandis, the Dudgeon v. the United Kingdom judgment of 22 October 1981, Series
A no. 45, p. 21, ' 52). However, a considerable number of people were involved
in the activities in question which included, inter alia, the recruitment
of new "members", the provision of several specially-equipped "chambers",
and the shooting of many video-tapes which were distributed among the "members"
(see paragraphs 8 and 9 above). It may thus be open to question whether the sexual
activities of the applicants fell entirely within the notion of "private
life" in the particular circumstances of the case.
since this point has not been disputed by those appearing before it, the Court
sees no reason to examine it of its own motion in the present case. Assuming,
therefore, that the prosecution and conviction of the applicants amounted to an
interference with their private life, the question arises whether such an interference
was "necessary in a democratic society" within the meaning of the second
paragraph of Article 8.
"Necessary in a
37. The applicants
maintained that the interference at issue could not be regarded as "necessary
in a democratic society". This submission was contested by the Government
and by a majority of the Commission.
38. In support of
their submission, the applicants alleged that all those involved in the sado-masochistic
encounters were willing adult participants; that participation in the acts complained
of was carefully restricted and controlled and was limited to persons with like-minded
sado-masochistic proclivities; that the acts were not witnessed by the public
at large and that there was no danger or likelihood that they would ever be so
witnessed; that no serious or permanent injury had been sustained, no infection
had been caused to the wounds, and that no medical treatment had been required.
Furthermore, no complaint was ever made to the police - who learnt about the applicants'
activities by chance (see paragraph 8 above).
potential for severe injury or for moral corruption was regarded by the applicants
as a matter of speculation. To the extent that issues of public morality had arisen
- with reference to Mr Laskey's conviction for keeping a disorderly house
and for the possession of an indecent photograph of a child (see paragraph 11
above) - these had been dealt with under the relevant sexual offences provisions
and appropriately punished. In any event, such issues fell outside the scope of
the case as presented before the Court.
39. The applicants
submitted that their case should be viewed as one involving matters of sexual
expression, rather than violence. With due regard to this consideration, the line
beyond which consent is no defence to physical injury should only be drawn at
the level of intentional or reckless causing of serious disabling injury.
For the Government, the State was entitled to punish acts of violence, such as
those for which the applicants were convicted, that could not be considered of
a trifling or transient nature, irrespective of the consent of the victim. In
fact, in the present case, some of these acts could well be compared to "genital
torture" and a Contracting State could not be said to have an obligation
to tolerate acts of torture because they are committed in the context of a consenting
sexual relationship. The State was moreover entitled to prohibit activities because
of their potential danger.
The Government further contended
that the criminal law should seek to deter certain forms of behaviour on public
health grounds but also for broader moral reasons. In this respect, acts of torture
- such as those at issue in the present case - may be banned also on the ground
that they undermine the respect which human beings should confer upon each other.
In any event, the whole issue of the role of consent in the criminal law is of
great complexity and the Contracting States should enjoy a wide margin of appreciation
to consider all the public policy options.
41. The Commission
noted that the injuries that were or could be caused by the applicants' activities
were of a significant nature and degree, and that the conduct in question was,
on any view, of an extreme character. The State authorities therefore acted within
their margin of appreciation in order to protect its citizens from real risk of
serious physical harm or injury.
42. According to the Court's
established case-law, the notion of necessity implies that the interference corresponds
to a pressing social need and, in particular, that it is proportionate to the
legitimate aim pursued; in determining whether an interference is "necessary
in a democratic society", the Court will take into account that a margin
of appreciation is left to the national authorities (see, inter alia, the
Olsson v. Sweden (no. 1) judgment of 24 March 1988, Series A no. 130, pp. 31-32,
' 67), whose decision remains subject to review by the Court for conformity with
the requirements of the Convention.
The scope of this margin
of appreciation is not identical in each case but will vary according to the context.
Relevant factors include the nature of the Convention right in issue, its importance
for the individual and the nature of the activities concerned (see the Buckley
v. the United Kingdom judgment of 25 September 1996, Reports of Judgments and
Decisions 1996-IV, pp.1291-1292, ' 74).
43. The Court
considers that one of the roles which the State is unquestionably entitled to
undertake is to seek to regulate, through the operation of the criminal law, activities
which involve the infliction of physical harm. This is so whether the activities
in question occur in the course of sexual conduct or otherwise.
The determination of the level of harm that should be tolerated by the law in
situations where the victim consents is in the first instance a matter for the
State concerned since what is at stake is related, on the one hand, to public
health considerations and to the general deterrent effect of the criminal law,
and, on the other, to the personal autonomy of the individual.
The applicants have contended that, in the circumstances of the case, the behaviour
in question formed part of private morality which is not the State's business
to regulate. In their submission the matters for which they were prosecuted and
convicted concerned only private sexual behaviour.
Court is not persuaded by this submission. It is evident from the facts established
by the national courts that the applicants' sado-masochistic activities involved
a significant degree of injury or wounding which could not be characterised as
trifling or transient. This, in itself, suffices to distinguish the present case
from those applications which have previously been examined by the Court concerning
consensual homosexual behaviour in private between adults where no such feature
was present (see the Dudgeon v. the United Kingdom judgment cited above, the Norris
v. Ireland judgment of 26 October 1988, Series A no. 142, and the Modinos
v. Cyprus judgment of 22 April 1993, Series A no. 259).
Nor does the Court accept the applicants' submission that no prosecution should
have been brought against them since their injuries were not severe and since
no medical treatment had been required.
In deciding whether
or not to prosecute, the State authorities were entitled to have regard not only
to the actual seriousness of the harm caused - which as noted above was considered
to be significant - but also, as stated by Lord Jauncey of Tullichettle (see paragraph
21 above), to the potential for harm inherent in the acts in question. In this
respect it is recalled that the activities were considered by Lord Templeman to
be "unpredictably dangerous" (see paragraph 20 above).
The applicants have further submitted that they were singled out partly because
of the authorities' bias against homosexuals. They referred to the recent judgment
in the Wilson case (see paragraph 30 above), where, in their view, similar behaviour
in the context of a heterosexual couple was not considered to deserve criminal
The Court finds no evidence in support of the
applicants' allegations in either the conduct of the proceedings against them
or the judgment of the House of Lords. In this respect it recalls the remark of
the trial judge when passing sentence that "the unlawful conduct now before
the court would be dealt with equally in the prosecution of heterosexuals or bisexuals
if carried out by them" (see paragraph 11 above).
it is clear from the judgment of the House of Lords that the opinions of the majority
were based on the extreme nature of the practices involved and not the sexual
proclivities of the applicants (see paragraphs 21 and 21 above).
any event, like the Court of Appeal, the Court does not consider that the facts
in the Wilson case were at all comparable in seriousness to those in the present
case (see paragraph 30 above).
48. Accordingly, the Court
considers that the reasons given by the national authorities for the measures
taken in respect of the applicants were relevant and sufficient for the purposes
of Article 8 ' 2.
49. It remains to be ascertained
whether these measures were proportionate to the legitimate aim or aims pursued.
Court notes that the charges of assault were numerous and referred to illegal
activities which had taken place over more than ten years. However, only a few
charges were selected for inclusion in the prosecution case. It further notes
that, in recognition of the fact that the applicants did not appreciate their
actions to be criminal, reduced sentences were imposed on appeal (see paragraphs
15-17 above). In these circumstances, bearing in mind the degree of organisation
involved in the offences, the measures taken against the applicants cannot be
regarded as disproportionate.
50. In sum, the Court finds
that the national authorities were entitled to consider that the prosecution and
conviction of the applicants were necessary in a democratic society for the protection
of health within the meaning of Article 8 ' 2 of the Convention.
In view of this conclusion the Court, like the Commission, does not find it necessary
to determine whether the interference with the applicants' right to respect for
private life could also be justified on the ground of the protection of morals.
This finding, however, should not be understood as calling into question the prerogative
of the State on moral grounds to seek to deter acts of the kind in question.
THESE REASONS, THE COURT UNANIMOUSLY Holds that there has been no violation
of Article 8 of the Convention.
English and in French, and delivered at a public hearing at the Human Rights Building,
Strasbourg, on 19 February 1997.
with Article 51 ' 2 of the Convention and Rule 53 ' 2 of Rules of Court
A, the concurring opinion of Mr Pettiti is annexed to this judgment.
OF JUDGE PETTITI
concurred with all my colleagues in finding that there had been no violation of
Article 8 of the Convention. However, my reasoning differs from theirs in some
Firstly, the Court implicitly accepted that
Article 8 was applicable since it assumed there had been an interference, and
the application referred to State interference under Article 8 - "the institution
of criminal proceedings infringed that Article".
my view, that Article was not even applicable in the instant case. The concept
of private life cannot be stretched indefinitely.
aspect of private life automatically qualifies for protection under the Convention.
The fact that the behaviour concerned takes place on private premises does not
suffice to ensure complete immunity and impunity. Not everything that happens
behind closed doors is necessarily acceptable. It is already the case in criminal
law that the "rape" of a spouse where there is doubt whether consent
was given may lead to prosecution. Other types of behaviour may give rise to civil
proceedings (internal telephone-tapping for example). Sexual acts and abuse, even
when not criminal, give rise to liability.
The case could
have been looked at differently, both in domestic law and subsequently under the
Convention. Can one consider that adolescents taking part in sado-masochistic
activities have given their free and informed consent where their elders have
used various means of enticement, including financial reward?
domestic law, sado-masochistic activities could be made the subject of a specific
criminal offence without that being contrary to Article 8 of the European
Convention on Human Rights.
It seems to me that the wording
used by the Court in paragraph 42 is too vague. The margin of appreciation
has been used by the Court mainly in dealing with issues of morals or problems
of civil society, but above all so as to afford better protection to others; consequently,
a reference to the M|ller and Others v. Switzerland judgment would have been preferable
to the reference to the Buckley v. the United Kingdom judgment (cf. Olivier De
Schutter's commentary on that judgment in Revue trimestrielle des Droits de
l'Homme, Bruxelles 1997, pp. 64-93).
It seemed to me
necessary to expand paragraph 43 by noting "to regulate and punish practices
of sexual abuse that are demeaning even if they do not involve the infliction
of physical harm".
The dangers of unrestrained permissiveness,
which can lead to debauchery, paedophilia or the torture of others, were highlighted
at the Stockholm World Conference (cf. paragraph 11 of the judgment). The protection
of private life means the protection of a person's intimacy and dignity, not the
protection of his baseness or the promotion of criminal immoralism.
[fn1] The case is numbered 109/1995/615/703-705.
The first number is the case's position on the list of cases referred to the Court
in the relevant year (second number). The third number indicates the case's position
on the list of cases referred to the Court since its creation and the last two
numbers indicate its position on the list of the corresponding originating applications
to the Commission. (Back to FN1)
[fn2] Rules A apply to all cases referred
to the Court before the entry into force of Protocol No. 9 (1 October 1994) and
thereafter only to cases concerning States not bound by that Protocol. They correspond
to the Rules that came into force on 1 January 1983, as amended several times
subsequently. (Back to FN 2)
[fn3]. Note by the Registrar. For practical
reasons this annex will appear only with the printed version of the judgment (in
Reports of Judgments and Decisions - 1997), but a copy of the Commission's report
is obtainable from the registry. (Back to FN 3)